1. Heard learned counsel for the parties.

2. Present criminal appeal is preferred against the judgment of conviction and order of sentence dated 31.03.2009 passed by learned 1st Additional Sessions Judge, Pakur in Sessions Case No. 101 of 2008, whereby and whereunder, the appellant has been held guilty for the offence under Section 448 and 376/511 of the I.P.C. and sentenced to undergo S.I. for six months for the offence under Section 448 of the I.P.C. and R.I. of five years for the offence under Section 376/511 of the I.P.C.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal is that on 19.02.2008, the victim girl, aged about 17 years was sleeping at her house in the night and at about 11:00 P.M., the appellant trespassed into her house with plastic torch and started removing her sari and tried to commit rape with her, then the victim girl woke up and raised alarm, thereafter the mother of the victim girl reached there and caught hold the appellant. On hulla, parents of the appellant also arrived there and released the appellant. On the next day, a village Panchayat was called for in the Village for the immoral act of the accused and it was suggested that the appellant should marry with the victim girl and the parents of the appellant had also assured, but the uncle of the appellant denied for the marriage and the marriage could not be solemnized. Thereafter, on the basis of fardbeyan of the victim girl, Pakur (M) P.S. Case No. 28/2008 was instituted for the offence under Sections 452 and 376/511 of the I.P.C.

4. After completion of investigation, charge sheet was submitted against the above-named sole accused. Accordingly, cognizance of the offence was taken and the case was committed to the court of Sessions for trial and disposal. On 30.07.2008, charge under Section 452 and 376/511 of the I.P.C. was framed against the accused, to which he pleaded not guilty and claimed to be tried.

5. In course of trial, altogether seven witnesses have been examined by the prosecution. Apart from oral testimony of the witnesses, following documentary evidences have been brought on record:-

                  Exhibit-1 : Fardbeyan.

                  Exhibit-2 : Formal F.I.R.

6. The case of defence is denial from occurrence and false implication. No witness has been examined on behalf of defence. However, only one documentary evidence has been adduced on behalf defence, which is as follows:

Exhibit-A - C.C. of charge sheet of G.R. Case No. 657/2007.

7. After conclusion of trial, the appellant was held guilty and sentenced as stated above.

8. Learned counsel for the appellant has submitted that the appellant is wrongly convicted for the offence under Sections 376 read with 511 of the I.P.C. No specific over act has been attributed towards commission of rape with the victim girl, who is alleged to be under love affairs with the appellant. There is simple allegation that in the night, present appellant entered into the house of the victim girl (P.W.-6) lifted her sari and wanted to commit rape with the victim girl, but in the meantime, the victim girl raised alarm and her mother came and appellant was caught, thereafter villagers were also assembled and talk of marriage took place, but the uncle of the present appellant has denied from the marriage. Therefore, this case was lodged after 14 days. It has further been submitted that the core prosecution story is centered round due to non-solemnization of marriage of the victim girl with the appellant. The story of entering into the house of the informant and other incidents are concocted. No valid explanation has been offered by prosecution for such inordinate delay in lodging the FIR.

9. In alternative, it is argued that at best the case falls under Section 354 of the I.P.C. instead of Section 376 read with 511 of the I.P.C. The appellant has already remained in custody for more than one year during trial and post-conviction and has sufficiently been punished for his guilt. Therefore, the appellant may be sentenced for the period of imprisonment already undergone, instead of imprisonment as awarded to him by concerned trial court.

10. Per contra, learned Spl.P.P. appearing for the State has defended the impugned judgment on merits, but in the facts and circumstances of the case cannot be able to explain as to how the offence under Sections 376/511 of the I.P.C. is constituted in this case.

11. I have gone through the record of the case, particularly, the evidence of P.W.-6, who happens to be victim of this case. She has simply stated about lifting of sari by the appellant and try to commit rape with her but in the meantime, she raised alarm and her mother intercepted and caught hold the accused. Thereafter, talk of marriage started with the family members of the present appellant. It is alleged that the parents of appellant were ready for solemnization of marriage with the victim, but his uncle denied, therefore, matter cannot be materialized and this case was lodged after 14 days. The totality of circumstance, even if taken to be true, the offence under Sections 376/511 of the I.P.C. is not constituted in this case as there is no specific overt act towards commission of rape with the victim, rather this case falls under Section 354 of the I.P.C.

12. In view of the above discussions and reasons, the conviction of the appellant for the offence under Section 376/511 of the I.P.C. is set aside and is altered to Sections 354 / 448 of the I.P.C. Under the aforesaid circumstances, this appeal is dismissed on

merits with modification in conviction from Section 376/511 to Section 354 of the I.P.C.

13. So far sentence of the appellant is concerned, the appellant has already undergone imprisonment of one year during pendency of the case. Under the aforesaid circumstances, the appellant is sentenced for his guilt to the imprisonment already undergone by him.

14. Appellant is on bail, as such he is discharged from the liability of bail bond. Sureties are also discharged.

15. Pending I.A., if any, stand disposed of.

16. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.